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11.27.2009

Hawaii apology resolution

The November issue of the Harvard Law Review covers the Supreme Court 2008 term. The section on Leading Cases includes a discussion of Hawaii v. Office of Hawaiian Affairs, in which the U.S. Supreme Court reversed the Hawaii Supreme Court regarding the 1993 joint resolution acknowledging "the illegal overthrow of the Kingdom of Hawaii" in 1893 and apologizing to Native Hawaiians, S.J. Res. 19 (pdf, 5pp), P.L. No. 103-150.

The case concerned a Maui tract of former crown land that was ceded to the United States at annexation and held by the State. The Hawaii high court ruled that the State had "a fiduciary duty as trustee to protect the ceded lands pending a resolution of native Hawaiian claims." The U.S. Supreme Court reversed, holding that the Apology Resolution did not strip Hawaii of its authority to "sell, exchange, or transfer" ceded lands. The final section of the Resolution is a Disclaimer: "Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States."

The Harvard writer states, "The Hawaii case is remarkable for the apparent consensus that the Apology Resolution was legally insignificant," and concludes:

We have become accustomed to an overwhelming amount of empty political rhetoric — politicians’ words that are neither false nor efficacious. Congressional resolutions are a prime culprit....it is easy to understand a congressional apology as mere "conciliatory and precatory" verbiage with no actual legal effect. By reading the resolution this way, however, the Court accepted and perpetuated an understanding of political rhetoric as meaningless and impotent. The Court should instead take seriously the possibility that congressional language may be legally significant, even where it is not, strictly speaking, used to create legal rights.